Leland Kremplewski v. State ( 2019 )

Opinion issued August 8, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00033-CR
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LELAND KREMPLEWSKI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 264th District Court
Bell County, Texas
Trial Court Case No. 78928

Per the Texas Supreme Court’s docket-equalization powers, this appeal was
transferred from the Third Court of Appeals to this court on January 11, 2019.
See TEX. GOV’T CODE § 73.001; Order Regarding Transfer of Cases From Courts
of Appeals, Misc. Docket No. 18-9166 (Tex. Dec. 20, 2018). We are unaware of
any conflict between its precedent and ours. See TEX. R. APP. P. 41.3.
O P I N I O N
Leland Kremplewski contends that 90 percent of the $25 time-payment fee
imposed on him as court costs is unconstitutional because it violates the separation-
of-powers clause of the Texas Constitution. We agree. We thus modify the trial
court’s judgment to reduce this fee to $2.50 and affirm the judgment as modified.
BACKGROUND
Kremplewski pleaded guilty to possession of a controlled substance,
methamphetamine, in an amount of less than one gram. See TEX. HEALTH & SAFETY
CODE §§ 481.102(6), 481.115(a), (b). The trial court imposed court costs on
Kremplewski in the judgment of conviction. One of these costs, memorialized in a
separate bill, was a time-payment fee of $25, which was automatically imposed by
statute because Kremplewski did not pay court costs within 30 days of the entry of
the judgment. See TEX. LOC. GOV’T CODE § 133.103(a).
DISCUSSION
Kremplewski contends that 90 percent of the time-payment fee imposed by
section 133.103(a) of the Local Government Code is unconstitutional on its face
because it violates the separation-of-powers clause of the Texas Constitution.
Standard of Review
We review constitutional challenges to a statute de novo. VanDyke v. State,
538 S.W.3d 561, 570 (Tex. Crim. App. 2017); see also Ex parte Lo, 424 S.W.3d 10,
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14 (Tex. Crim. App. 2013) (facial challenges to statutes reviewed de novo).
When, as here, a litigant claims that a statute is facially unconstitutional, we
consider the statute as it is written, rather than any particular application of it. Peraza
v. State, 467 S.W.3d 508, 514–15 (Tex. Crim. App. 2015). A claim of facial
unconstitutionality asserts that the statute is unconstitutional in all possible
circumstances. Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App. 2015).
Applicable Law
The Texas Constitution mandates the separation of powers in our government:
The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to one;
those which are Executive to another, and those which are Judicial to
another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the
others, except in the instances herein expressly permitted.
TEX. CONST. art II, § 1. Consequently, one department can neither assume nor be
delegated a power that belongs to one of the others. VanDyke, 538 S.W.3d at 571.
The collection of fees as court costs in criminal cases is a proper exercise of
the judicial power, provided that these fees are imposed under a statutory scheme
allocating them to be expended for a legitimate criminal-justice purpose. Salinas v.
State, 523 S.W.3d 103, 107 (Tex. Crim. App. 2017). A legitimate criminal-justice
purpose is one that relates to the administration of the criminal-justice system.
Peraza, 467 S.W.3d at 517–18. If, however, the courts are statutorily delegated the
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power to charge fees that do not relate to the administration of the criminal-justice
system, the statute violates the separation of powers by transforming the courts into
tax collectors. Salinas, 523 S.W.3d at 107. We decide whether a fee relates to the
administration of criminal justice on a case-by-case basis and our inquiry is governed
by what a given fee statute says about the intended use of the funds, not whether the
funds are actually used for a criminal-justice purpose. Id.; Hernandez v. State, 562
S.W.3d 500, 510–11 (Tex. App.—Houston [1st Dist.] 2017, pet. stricken).
Section 133.103(a) of the Local Government Code requires anyone convicted
of a misdemeanor or felony to pay a $25 time-payment fee if he fails to pay any part
of the courts costs within 30 days of the entry of judgment. Subject to an exception
that is not applicable in this case, the statute directs the treasurer to:
● send 50 percent of these fees to the comptroller, who “shall deposit the fees
received to the credit of the general revenue fund”;
● deposit 10 percent of these fees in the county’s or municipality’s general
fund “for the purpose of improving the efficiency of the administration of
justice”; and
● deposit the remaining 40 percent of these fees “in the general revenue
account of the county or municipality.”
TEX. LOC. GOV’T CODE § 133.103(b), (c), (d).
Analysis
In Salinas, the Court of Criminal Appeals held that two fees imposed by
section 103.102 of the Local Government Code were facially unconstitutional
because they violated the Texas Constitution’s separation-of-powers clause. 523
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S.W.3d at 105. The first was a fee to provide rehabilitation services. Id. at 107–08.
The rehabilitation fee provision did not on its face serve a criminal-justice purpose;
the fees were deposited into a general revenue fund and were not earmarked for
crime victims or in any other way designated for the administration of criminal
justice. Id. at 107–09. The second was a fee for counseling abused children. Id. at
109. This provision likewise did not direct that the fees be used for a criminal-justice
purpose; these fees were deposited into the state’s general revenue fund. Id. at 109–
10.
Relying on Salinas, our sister court recently held that section 133.103 of the
Local Government Code is mostly facially unconstitutional because it too violates
the separation-of-powers clause. See Johnson v. State, 573 S.W.3d 328, 339–40
(Tex. App.—Houston [14th Dist.] 2019, pet. filed). It noted that, like the fees in
Salinas, 90 percent of the time-payment fee is “deposited into a general fund without
limitation or restriction.” Id. at 340. For this reason, the parts of the statute providing
for the collection of 90 percent of the fee are unconstitutional; whenever a “district
clerk collects the portion of the fee authorized by section 133.103(a), (b), and (d), it
is gathering general revenue not sufficiently related to a legitimate criminal justice
purpose.” Id. Without a statutory directive that these funds are to be used for a
criminal-justice purpose, the statute transforms courts into tax collectors. See id.
Accordingly, the court of appeals modified the trial court’s judgment to reduce the
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time-payment fee from $25 to $2.50. Id. at 341.
We agree with our sister court’s analysis. Ten percent of the time-payment fee
is statutorily set aside “for the purpose of improving the efficiency of the
administration of justice.” TEX. LOC. GOV’T CODE § 133.103(c). The remaining 90
percent, however, is deposited into general revenue funds without limitation or
restriction. Id. § 133.103(b), (d). The time-payment fee is an administrative fee
imposed for the late payment of court costs. Id. § 133.103(a). It neither recoups
expenses incurred in trying the defendant nor serves any purpose related to the
administration of the criminal-justice system. In sum, 90 percent of the time-
payment fee is a tax that is not designated for any criminal-justice purpose. This is
precisely what article II, section 1 of the Texas Constitution forbids. See Salinas,
523 S.W.3d at 107–09; Johnson, 573 S.W.3d at 339–40; see also Allen v. State, 570
S.W.3d 795, 805 (Tex. App.—Houston [1st Dist.] 2018, pet. granted) (under Salinas,
statute must direct that funds be used for criminal-justice purpose; it is not enough
that some funds ultimately might benefit someone with some connection to criminal-
justice system).
The State contends that Johnson was wrongly decided, arguing that:
The fact that the funds may be deposited in the general fund does not
mean that they will not be used for criminal justice purposes. A large
part of both the State and County’s general funds are used to operate
the criminal justice system. But if court costs are a recoupment or
reimbursement of judicial resources expended by the courts of the State
and County in the trial of criminal cases or the administration of the
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criminal justice system and those expenditures come out of the general
fund, then how can it be said that replacing those expended funds to
continue to operate that system would not be a criminal justice purpose
merely because they are placed in the general fund? Would not
reimbursement of funds expended for a criminal justice purpose from
the general fund by replacing those costs into the same fund still be a
legitimate criminal justice purpose?
The State’s argument flies in the face of Salinas. In Salinas, the Court of
Criminal Appeals held that whether a fee statute passes constitutional muster under
the separation-of-powers clause of the Texas Constitution turns on “what the
governing statute says about the intended use of the funds, not whether funds are
actually used for a criminal justice purpose.” 523 S.W.3d at 107. Setting aside
subsection (c) of section 133.103, which applies to just 10 percent of the time-
payment fee, the statute does not say that the fees collected are to be used for a
criminal-justice purpose. The statute allocates 90 percent of the fees collected to
general revenue funds without any limitation or restriction. See TEX. LOC. GOV’T
CODE § 133.103(b), (d). Salinas held that this kind of unlimited or unrestricted
collection of money by the courts for allocation to general revenue funds violates
the Texas Constitution’s separation-of-powers clause. 523 S.W.3d at 107–10.
Instead of acknowledging section 133.103’s language, the State claims that a
significant portion of the 90 percent of the time-payment fee that is deposited into
general revenue funds inevitably gets used for criminal-justice purposes because the
State and its counties administer the criminal-justice system from their general
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revenues. The State does not identify any factual support for this claim. But even if
the State had done so, its claim focuses on how the funds are ultimately spent instead
of focusing on the proper legal inquiry, which is how section 133.103 says they are
to be allocated. See Salinas, 523 S.W.3d at 107; see also Hernandez, 562 S.W.3d at
510 (rejecting State’s argument that fee deposited in general revenue fund was
constitutional because it could be spent for a criminal-justice purpose because
Salinas requires constitutionality to be assessed at the moment of collection, not
expenditure).
We hold that subsections (a), (b), and (d) of section 133.103 are facially
unconstitutional because they impermissibly turn the courts into tax collectors in
violation of article II, section 1 of the Texas Constitution. We thus sustain
Kremplewski’s sole issue.
CONCLUSION
We modify the bill of costs and, in turn, the trial court’s judgment authorizing
the assessment of these costs to reduce the time-payment fee from $25 to $2.50, and
we affirm the judgment as modified. See Hernandez, 562 S.W.3d at 511; Williams
v. State, 495 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d).
Gordon Goodman
Justice
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Panel consists of Justices Keyes, Kelly, and Goodman.
Publish. TEX. R. APP. P. 47.2(b).
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